New Critical Habitat Rules Threaten Oil, Gas Development

Nossaman Partner Rob Thornton was quoted in the Law360 article, "New Critical Habitat Rules Threaten Oil, Gas Development," regarding the federal government's efforts to finalize the first major changes to Endangered Species Act regulation in years.  The U.S Department of the Interior proposed new rules which would change the process for determining critical habitats, giving the agency more freedom to include land that isn't currently occupied by threatened species and expand habitat areas because of potential climate change impacts.

Mr. Thornton, who was counsel to the to the U.S. House of Representatives committee working on the revisions to the ESA in 1978, said the government has failed to move ahead with ESA regulation over the past few years, making the current proposals that much more significant.  "This is the most noteworthy regulatory development under the ESA in over a decade," he said.

Mr. Thornton noted that one of the most important aspects of the changes is the removal of distinctions between occupied and unoccupied areas.  "The existing statute allows them to designate areas that are not occupied, but they have to make a finding that it is essential to conservation," he said.  "It establishes this presumption against designated unoccupied areas, but the proposal removes that presumption."